Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedKericho ELC Misc. Application (Reference) arising from Kericho ELC Misc. Appl No. 1 of 2024· [2024] KEELC 6841 (KLR)

Obondo Koko & Company Advocates v Chepngetich (Environment and Land Miscellaneous Application E007 of 2024) [2024] KEELC 6841 (KLR)

Environment and Land Court
17 October 2024
7,639 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

#

A Kericho court cut a lawyer's fees from Kshs. 4.1 million, ruling fees must follow a set formula and every claimed item needs actual proof like receipts.

What this practically means

#

Executive summary

#
This is a ruling by the Environment and Land Court at Kericho (L. A. Omollo, J) on an advocate's reference against a Taxing Officer's decision of 12th March 2024 taxing the Applicant advocate's advocate-client bill of costs at Kshs. 4,181,950/=. The advocate, who had defended the Respondent in Kericho ELC Case No. 19 of 2018 with a subject matter valued at Kshs. 52,750,000/=, contended that the award was manifestly low and based on errors of principle, including failure to apply Schedule 6 Part B of the Advocates Remuneration Order and to award getting up fees and VAT. The Respondent maintained she had agreed fees of Kshs. 300,000/=, had paid disbursements personally, and that many bill items lacked proof. The court first held the reference was filed within the fourteen-day period under paragraph 11 of the Remuneration Order. On the merits, relying principally on Otieno, Ragot & Company Advocates v Kenya Airports Authority, the court held that once instruction fees are ascertained in the party and party bill (here Kshs. 600,000/=), they must be increased by one-half with no further discretion, so instruction fees on the advocate-client bill should have been Kshs. 900,000/=, not Kshs. 2,000,000/=. The getting up fee was fixed at Kshs. 300,000/=. Unproved correspondence items and the unreceipted further Court fees were taxed off, item No. 98 (the one-half addition) was taxed off pending a fresh computation, and VAT was awarded. The court declined to disturb other discretionary awards for want of a demonstrated basis. The reference succeeded in part; each party was ordered to bear its own costs of the reference.

Key legal issues

#
01

Timeliness of the reference

Holding

The reference filed on 26th March 2024 was within the fourteen-day period under paragraph 11 of the Advocates Remuneration Order

Reasoning

The ruling challenged was delivered on 12th March 2024. The reference was filed on 26th March 2024, which is within the fourteen-day window prescribed by paragraph 11(1) of the Advocates Remuneration Order. The Respondent's contention that the reference was filed out of time therefore failed.

p. 8
02

Instruction fees on the advocate-client bill

Holding

The Taxing Officer erred in principle by independently awarding Kshs. 2,000,000/=; instruction fees should have been the party and party award of Kshs. 600,000/= increased by one-half, i.e. Kshs. 900,000/=

Reasoning

Relying on Otieno Ragot v Kenya Airports Authority, once instruction fees are ascertained in the party and party bill they form the basis of the advocate-client instruction fees, increased by one-half, with no residual discretion. The party and party taxation awarded Kshs. 600,000/=; one-half increase yields Kshs. 900,000/=. The independent award of Kshs. 2,000,000/= was therefore an error of principle.

p. 10
03

Getting up fees

Holding

Getting up fee is one-third of the instruction fee; item No. 1A taxed at Kshs. 300,000/=

Reasoning

Schedule 6 Paragraph 2 of the Advocates Remuneration Order prescribes a getting up fee of not less than one-third of the instruction fee allowed on taxation. Having found instruction fees of Kshs. 900,000/=, the court taxed the getting up fee at Kshs. 300,000/= in place of the Kshs. 670,000/= awarded by the Taxing Officer.

p. 11
04

Unproved correspondence and disbursement items

Holding

Items 12, 13, 14, 23, 24, 25, 29, 35, 37, 56, 59, 60, 61 (correspondences) and 112 (further Court fees) taxed off for want of proof

Reasoning

The Respondent contested the correspondences and further Court fees; the Applicant did not respond to the challenge or produce copies or receipts by way of affidavit evidence. Following National Bank of Kenya v Rachuonyo and the disbursements authorities, the taxing master could not award items without proof, and the Taxing Officer erred by ignoring the dispute.

p. 14
05

Item No. 98 (adding one-half of the sub-total)

Holding

Item No. 98 taxed off; the one-half increase is to be applied by the court to a recomputed total

Reasoning

The bill itself included an item claiming one-half of the sub-total, which the Taxing Officer taxed at Kshs. 1,435,725/=. The court held the correct approach is to recompute the taxed costs in light of its findings and then increase the total by one-half, not to award the increase as a discrete bill item.

p. 15
06

VAT

Holding

The Taxing Officer erred in not awarding VAT on the advocate-client costs

Reasoning

Following Pyramid Motors Limited v Langata Gardens Limited, VAT is awardable in an advocate-client bill of costs. The Respondent did not submit on the issue. The court found the omission of VAT to be an error and awarded VAT to the Applicant.

p. 15
07

Attendance items 77, 83, 87, 90 and items 2 and 47

Holding

No basis laid to interfere with the Taxing Officer's awards on these items

Reasoning

The Respondent disputed the attendance awards and items 2 and 47, arguing exaggeration and split items, but the court found she had not laid a basis for interference. The Taxing Officer's discretion on the remaining items, once scrutinised, is entitled to deference on a reference.

p. 14

Legal principles established

#
  • On a reference, a Judge will not normally interfere with the Taxing Officer's exercise of discretion unless the Taxing Officer erred in principle
  • Once instruction fees are determined in a party and party bill, they become the basis of instruction fees in the advocate-client bill, increased by one-half, with no further discretion
  • The value of the subject matter for taxation is determined from the pleadings, judgment or settlement
  • Disbursements must be proved by way of receipts
  • Where documents such as correspondences relied on for remuneration are contested, the party seeking to rely on them must produce copies by way of affidavit evidence

Court orders

#
  1. 1.The Taxing Officer's decision on item Nos. 1, 1A, 12, 13, 14, 23, 24, 25, 29, 35, 37, 56, 59, 60, 61, 98 and 112 is set aside
  2. 2.Item No. 1 (instruction fees) is taxed at Kshs. 900,000/=
  3. 3.Item No. 1A (getting up fees) is taxed at Kshs. 300,000/=
  4. 4.Item Nos. 12, 13, 14, 23, 24, 25, 29, 35, 37, 56, 59, 60, 61, 98 and 112 are taxed off
  5. 5.The Applicant is awarded VAT
  6. 6.A new computation of the taxed costs should be done taking into consideration the findings of the Court, which should then be increased by one half
  7. 7.Each party shall bear own costs of the reference

Authorities

#

Legislation

  • Civil Procedure ActSection 89
  • Advocates Remuneration Order 2014Schedule 6 (including Part A and Part B, Paragraphs 1, 2 and 62A)
  • Advocates Remuneration OrderParagraph 11
  • Advocates Remuneration OrderParagraph 57
  • Civil Procedure RulesOrder 21 Rule 9A

Cases cited (17)

  • Joreth Ltd v Kigano & Associates
    [2002] eKLR; NRB CA Civil Appeal No. 66 of 1999
  • Peter Muthoka & another v Ochieng and 3 Others
    [2019] eKLR
  • Otieno, Ragot & Company Advocates v Kenya Airports Authority
    [2015] eKLR; [2021] eKLR
  • Kamunyori & Company Advocates v Development Bank of Kenya Ltd
    [2006] eKLR
  • First American Bank of Kenya and others
    [2002] eKLR
  • Shreeji Enterprises Limited v John Munga Chai
    [2022] eKLR
  • Pyramid Motors Limited v Langata Gardens Limited
    [2015] eKLR
  • National Bank of Kenya v Rachuonyo & Rachuonyo Advocates
    [2021] eKLR
  • Vincent Kibiwott Rono v Abraham Kiprotich Chebet & another
    [2022] eKLR
  • Kipkorir, Titoo & Kiara Advocates v Deposit Protection Fund Board
    NRB CA Civil Appeal No. 220 of 2004 [2005] eKLR
  • Premchand Raichand Ltd v Quarry Services of East Africa Ltd
    (1972) EA 162
  • Hezron Odhiambo Abok v Prajapat Pravinbhai Jivabhai t/a Mitra Enterprises (K) Ltd
    [2019] eKLR
  • Ngatia & Associates Advocates v. Interactive Gaming & Lotteries Limited
    [2017] eKLR
  • Maina Murage & Company Advocates v. Mae Properties Limited
    [2018] eKLR
  • George Arunga Sino v. Patrick J.O & Geoffrey D.O. Yogo T/A Otieno Yogo & Co. Advocates
    [2012] eKLR
  • Central Bank of Kenya v. Makhecha & Co. Advocates
    [2019] eKLR
  • B Mbai & Associates Advocates v. Clerk, Kiambu County Assembly & Another
    [2017] eKLR
Jurisdiction invoked
Paragraph 11 of the Advocates Remuneration Order - reference from a Taxing Officer's decision to a Judge

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Obondo Koko & Company Advocates v Chepngetich (Environment and Land Miscellaneous Application E007 of 2024) [2024] KEELC 6841 (KLR)", Case Analysis (2024). Kericho ELC Misc. Application (Reference) arising from Kericho ELC Misc. Appl No. 1 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6841/eng@2024-10-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.